CHITTARANJAN BARAI vs MADAN BHUNIA

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE



Present :

The Hon’ble Justice Md.ShabbarRashidi


CO 1707 OF 2024

ChittaranjanBarai

Vs.

Madan Bhunia


For the petitioner : Mr. Rabindranath Mahato, Adv.
Mr. Aritra Shankar Ray, Adv.

Heard on : 02.09.2026

Judgment on : 02.09.2026


MD. SHABBAR RASHIDI, J.:-
1. Affidavit of service filed on behalf of the petitioner is taken
on record.

2. None appears on behalf of the opposite party, despite
service.
3. The instant revisional application has been filed by the
plaintiff in Title Suit No. 292 of 2021 passed on April 23, 2024 in
Misc. Appeal No. 56 of 2021.By the impugned judgment and

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order,the learned First Appellate Court dismissed the Miscellaneous
Appeal filed on behalf of the present petitioner.
4. It is submitted by learned advocate for the petitioner that
the petitioner had filed a Title Suit seeking declaration and
permanent injunction in respect of the suit property being Title Suit
No. 292 of 2021 which was pending before the Court of learned Civil
st
Judge (Junior Division), 1 Court, PaschimMedinipur. He also
submits that the petitioner moved an application under Order
XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 seeking
an injunction, which was refused by the learned trial Court by an
order dated June 16, 2021 passed in Title Suit No. 292 of 2021.

5. Aggrieved by such order, the plaintiff/petitioner filed a
miscellaneous case being Misc. Appeal No. 56 of 2021. Learned
advocate for the petitioner further submits that during the pendency
of the said miscellaneous appeal, the petitioner was able to make
out a prima facie case for grant of temporary injunction and as
such, the learned First Appellate Court in such Misc. Appeal No. 56
of 2021 passed an interim order dated July 31, 2021. By such
order, the defendant/opposite party was restrained from making
any construction over the B1 schedule property.
6. Learned advocate for the petitioner submits that ultimately
such miscellaneous appeal was finally disposed of by the

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impugnedorder. The petitioner has filed the present revisional
application taking note of the interim order passed by the learned
First Appellate Court.This Court also passed an order of ad interim
order of injunction.
7. Learned advocate for the petitioner submits that since the
petitioner was able to make out a prima facie case for an order of ad
interim injunction which was invoked for some time during the
pendency of miscellaneousappeal as well as the present proceeding,
the impugned miscellaneousappeal deserved to be allowed.
8. Learned advocate for the petitioner further submits that the
opposite party/defendant has been making constructions over the
disputed properties and as such, an order of ad interim injunction
was very much required. The learned First Appellate Court
erroneously dismissed the miscellaneousappeal.
9. As noted above, none has appeared on behalf of the
opposite party, despite service.
10. As it transpires from the materials on record, the present
petitioner, as plaintiff,instituted Title Suit No. 292 of 2021 against
the opposite party. Such Title Suit wasfiledfor a decree declaring the
title of the petitioner/plaintiff over the suit property described in
Schedule B1 appended to the plaint. The petitioner also filed an
application under Order XXXIX Rules 1 and 2 of the Code of Civil

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Procedure in such suit. However, upon hearing learned advocate for
the petitioner, the learned trial Court refused to pass any ad interim
order on such petition filed on behalf of the petitioner/plaintiff by an
order passed on June 16, 2021.
11. Being aggrieved, the petitioner preferred a miscellaneous
appeal being Misc. Appeal No. 56 of 2021 before the Court of
learned District Judge at Midnapore. Subsequently, the Misc.
Appeal stood transferred to the Court of learned Additional District
Judge for disposal. The petitioner filed another application under
order XXXIX Rules 1 and 2 of the Code of Civil Procedure in such
miscellaneous appeal, seeking an injunction restraining the
opposite party from making any construction over B1 Schedule
properties.
12. It also transpires from the material on record that by an
order dated July 31, 2021 passed in connection Misc. Appeal No. 56
of 2021, the learned District Judge passed an ad interim order of
injunction. Such order which was passed by the learned District
Judge in Misc. Appeal No. 56 of 2021 is recorded as follows:-
“Plot No. 853 and 852 are situated side by side. The
plot no. 852 is the ancestral property of the plaintiff and
Plot no. 853 belongs to several persons. It is alleged
that the defendant has started illegal construction over
B1 schedule of the property. I refer to the judgment of
the Hon'ble Calcutta High Court passed in AIR 1965 Cal

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148 where in the Hon'ble Court held that "Plaintiff as
neighbour of defendant-defendant constructing his
building in violation of Municipal Statutory Rules
Plaintiff has a right to sue defendant and ask for an
injunction".
Being satisfied prima facie with the right, title and
interest of the appellant and apprehension of
irreparable loss and injury to the appellant due to illegal
construction of the respondent, this Appellate Court is of
the view that the appellant is entitled to get an ad
interim relief as prayed for.
Hence, the defendant/respondent is hereby restrained
from making any construction over the B1 schedule
property without getting the same converted, without
obtaining permission from the local Panchayat and
without leaving 0.90 meter space from the boundary
line till next date.”

13. Ultimately, by the impugned judgment and order, the First
Appellate Court dismissed the Misc. Appeal no. 56 of 2021 with the
following observations :-
“I once again reiterate that both parties must be heard
first only then any order can be passed keeping the
facts and circumstances in mind. Ad-interim order of
injunction is generally procured by misleading courts
and is being misused rampantly.There is a need of
maintaining caution and carefulness before granting ad-
interim injunction. Ld. Civil Judge has sparingly refused
ad-interim injunction.

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I am not inclined to interfere with the order dated
16.06.2021passed by Ld. Civil Judge (Jr. Divn), Ist
Court, PaschimMedinipur.
Hence, it is.”

14. Aggrieved by the impugned order, the petitioner has come
up before this Court under Article 227 of the Constitution of India.

15. By an order passed on January 22, 2025, this Court
granted an order of ad interim injunction in favour of the petitioner.
This Court held as follows:-
“7. Having heard the learned advocate appearing for
the petitioner, and considering the materials on record
including the title deeds and the record of rights, I am of
the view that the instant revisional application is
required to be heard. Taking note of the prima facie
case made out and also noting that an interim order
was subsisting in the matter between 31st July 2021
till disposal of the miscellaneous appeal as submitted
by the petitioner, and also taking into consideration the
balance of convenience and the irreparable loss that the
petitioner would suffer in the event the injunction is not
granted, there shall be an order of injunction restraining
the opposite party from carrying out any further
construction over the B1 schedule suit property being
plot no. 853 wherein the petitioner also has interest on
the basis of the title deed and Record of Rights, without
getting the same converted, without obtaining
permission from local panchayat and without leaving
0.90 meters space from the boundary line.”

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16. Therefore, from the materials on record, it is evident that
the learned First Appellate Court as well as this Court, at different
points of time,came to a conclusion that the petitioner was able to
demonstrate a prima facie case justifying an order of ad interim
injunction in his favour. Such orders were granted from time to
time. The first order was granted on July 31, 2021, and had
continued till the disposal of the Misc. Appeal No. 56 of 2021 by the
impugned order. Subsequently, this Court again came to a
conclusion that there was a prima facie case in favour of the
petitioner/plaintiff and byan order dated February 22, 2025,
granted an interim order of injunction. Such order was subsisting
till February 21, 2025.Subsequently, the petitioner never
approached this court for extension of such order.
17. Therefore, from the materials on record, it appears that the
petitioner/plaintiff has been able to demonstrate the prima facie
case justifying an order of injunction at least twice. So far as the
impugned judgment and order is concerned, it transpires that the
Misc. Appeal No. 56 of 2021 was refused on the ground that the
opposite party/defendant was not heard. The First Appellate Court
had held that “ ad interim orders of injunction is generally procured
by misleadingCourts and is being misused rampantly ”. However,
there is no substantive finding of the learned First Appellate Court

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that its order dated July 31, 2021 was an outcome of misleading
facts or fraud practiced by the present petitioner. Notably, the
opposite party/defendant had entered appearance in the Misc.
Appeal no. 56 of 2021 but failed to file any pleadings. The learned
First Appellate Court had recorded in the impugnedjudgment and
order to the effect that “the respondent/defendant and his advocate
have not appeared and attached oral arguments despite availing
sufficient opportunity.”
18. By the impugned judgment and order, the learned First
AppellateCourtaffirmed the refusal of adinterim order of injunction
by the learned trial Court and directed the learned trial Court to
decide the temporary injunction filed on behalf of the
petitioner/plaintiff on merits as per law after giving both the parties
sufficient opportunities. The Court is informed that the application
under order XXXIX Rules 1 and 2 of the Code of Civil Procedure is
yet to be decided by the learned trial Court as directed in the
impugned order.
19. Therefore, taking into consideration that order of ad interim
injunction was passed from time to time by the learned First
Appellate Court as well as this Court holding that there was a prima
facie case existing in favour of the petitioner/plaintiff. The suit

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property is required to be preserved until injunction petition filed on
behalf of the petitioner/plaintiff is adjudicated upon.
20. In such circumstances, the impugned judgement and order
is hereby set aside and the order passed by the learned First
Appellate Court on July 31, 2021 and by this Court on January 22,
2025,restraining the opposite party from carrying out any further
construction over the B1 schedule suit property being plot no. 853
without getting the same converted, without obtaining permission
from local Panchayat and leaving 0.90 meters space from the
boundary line, shall remain operative till disposal of the
plaintiffunder order XXXIX Rules 1 and 2 of the Code of Civil
Procedure by the learned trial Court.
21. CO 1707 of 2024 is, accordingly, disposed of .
22. Urgent Photostat Certified copy of this judgment, if applied
for, be supplied expeditiously after complying with all necessary
legal formalities.

(Md. ShabbarRashidi, J.)


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